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186. This previously accepted interpretation of the Free Exercise Clause is exemplified in Wisconsin v. Yoder, 406 U.S. 205 (1972), in which the Court held that the Free Exercise Clause required the state to exempt from its compulsory education requirement Amish children whose parents' sincere religious beliefs would have been violated by maintaining their children in school beyond age 13. The Court in Yoder
[T]here are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability.... A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion.
Id. at 219-20.
187. Smith, 494 U.S. at 894 (O'Connor, J., concurring in judgment). Justice O'Connor further observed: "There is nothing talismanic about neutral laws of general applicability or general criminal prohibitions, for laws neutral toward religion can FORDHAM URBAN LAW JOURNAL [Vol. XXIV Justice O'Connor concluded that the majority's new rule "'relegates a serious First Amendment value to the barest level of minimum scrutiny that the Equal Protection Clause already provides."1 To understand how truncated Justice Scalia's view of the Free Exercise Clause is, one should consider the Supreme Court's traditional interpretation and enforcement of that clause. 189 In stark contrast with Justice Scalia's view that the clause prohibits only laws that facially, intentionally discriminate against particular religious beliefs, the Court traditionally viewed it as guaranteeing some absolute degree of freedom from government burdens on religious exercises, regardless of how equally or widely dispersed those burdens might be, and regardless of whether the government imposed them inadvertently rather than intentionally. 19 Prior to Smith, the Supreme Court consistently held that the Free Exercise Clause requires the government to exempt an individual from a general legal obligation if it substantially burdened the individual's free exercise of religious beliefs, unless a nonexemption policy would survive strict judicial scrutiny-i.e., the government could show that, due to the exemptions, it could not substantially achieve a goal of compelling importance.' 9' coerce a person to violate his religious conscience or intrude upon his religious duties just as effectively as laws aimed at religion." Id. at 901.
188. Id. at 894 (quoting Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 141-42 (1987) (quoting Bowen v. Roy, 476 U.S. at 727 (O'Connor, J., concurring in part and dissenting in part))).
189. See Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520, 570-71 (1993) (Souter, J., concurring) (stating that "whatever Smith's virtues, they do not include a comfortable fit with settled law").
190. See, e.g., Smith, 494 U.S. at 894 (O'Connor, J., concurring in judgment) (citations omitted) (stating that "[t]he First Amendment... does not distinguish between laws that are generally applicable and laws that target particular religious practices...
Our free exercise cases have all concerned generally applicable laws that had the effect of significantly burdening a religious practice."); Yoder, 406 U.S. at 214-20;
Cantwell v. Connecticut, 310 U.S. 296, 304-07 (1940).
191. See, e.g., Hernandez v. Commissioner, 490 U.S. 680, 699 (1989) (reaffirming that "[tihe free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling government interest justifies the burden"); Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 141 (1987) (noting that laws burdening religion "must be subjected to strict scrutiny and could be justified only by proof by the State of a compelling interest"); United States v. Lee, 455 U.S. 252, 257-58 (1982) (stating that "[t]he state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest"); Thomas v. Review Bd., 450 U.S.
707, 718 (1981) (stating that "[t]he state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest"); Yoder, 406 U.S. at 215 (stating that "only those interests of the highest order
RELIGION AND POLITICSA leading case in establishing this understanding of free exercise rights was Sherbert v. Verner.192 In Sherbert, the Court held that a state was required to exempt a Sabbath observer from the general obligation of being available for Saturday work as a precondition for receiving unemployment compensation. 93 The Court made clear that the Free Exercise Clause was not satisfied by the mere fact that the state had treated all individuals equally with respect to their free exercise rights, insofar as all individuals were subject to the Saturday work requirement. 94 Nor did the Court deem the Free Exercise Clause to be satisfied by the mere fact that the state had not intentionally discriminated against Sabbatarians in crafting its rules governing unemployment compensation. It was undisputed that the state simply had not considered the differential adrequirement would verse impact that the facially nondiscriminatory 95 adherents of certain religious beliefs.
have on In Sherbert, the Court underscored that the Free Exercise Clause assured an absolute right to freedom from any substantial burden on the exercise of one's beliefs, no matter how equally or inadvertently that burden might have been imposed. That right could be limited only if the government could satisfy the heavy burden of proving that exempting the religiously burdened individual from the general obligation would prevent it from substantially achieving an objective of compelling importance.
After Sherbert, the Court consistently enforced these Free Exercise Clause principles in a line of cases that culminated in 1989 with 97 In Smith, the Hernandez v. Commissioner of Internal Revenue.
Court departed from this long line of precedent and issued a general holding that strict scrutiny is an inappropriately rigorous standard for reviewing government measures that substantially burden religious freedom. 98 and those not otherwise served can overbalance legitimate claims to the free exercise of religion"); Sherbert v. Verner, 374 U.S. 398, 406 (1963) (noting that a generally applicable regulation can be applied to a religious objector only if "some compelling state interest... justifies the substantial infringement of appellant's First Amendment rights").
192. 374 U.S. 398 (1963).
193. Id. at 403-04.
194. Id. at 404-06.
195. Id. at 406-09.
196. Id. at 408-09.
197. 490 U.S. 680, 699 (1989).
198. In three pre-Smith cases, the Court rejected Establishment Clause claims, over strong dissents, citing particular reasons why it should not apply the strict scrutiny of Smith and its progeny to those specific cases. Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 451 (1988) (rejecting challenge to federal governFORDHAM URBAN LAW JOURNAL [Vol. XXIV The Court's abandonment of meaningful judicial scrutiny was particularly startling in Smith because the government had never challenged the strict standard that, consistent with longstanding Supreme Court precedent, the courts below had applied. Therefore, this subject was not addressed in the parties' briefs or in oral argument. The briefs and argument were confined to the sole issue on which the Supreme Court granted review: whether a state's failure to exempt the sacramental use of peyote by members of the Native American Church from the state's general drug laws survived strict judicial scrutiny. 199 Never, throughout the protracted history of the litigation in Smith-which had been before the Supreme Court on a previous occasion 200-had any court or party argued that the challenged state action, which clearly imposed a substantial burden on the religious exercise of Native American Church members, should be reviewed under a less exacting standard than strict scrutiny. Yet, without the benefit of briefs or oral arguments, the majority, sua sponte, refused to assess the state's nonexemption under a strict scrutiny standard and even refused to review that nonexemption under any standard at all. The Court merely announced a new per se rule that "an individual's religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct ment's logging and road construction activities on lands sacred to several Native American tribes, even though it was undisputed that these activities "could have devastating effects on traditional Indian religious practices"); Bowen v. Roy, 476 U.S. 693 (1986) (rejecting challenge to federal benefits statute requiring benefit applicants and recipients to supply their Social Security numbers, despite claim by Native American parents that it would violate their religious beliefs to obtain and provide a Social Security number for their daughter); Goldman v. Weinberger, 475 U.S. 503 (1986) (rejecting challenge to Air Force regulations that forbade the wearing of a yarmulke by an ordained Orthodox Jewish rabbi who was a commissioned Air Force officer working as a clinical psychologist on an Air Force base, despite his sincere belief that he had a religious obligation to wear it).
In both Roy and Lyng, the Court expressly distinguished Sherbert on the ground that the First Amendment does not "require the Government itself to behave in ways that the individual believes will further his or her spiritual development.... The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens." Roy, 476 U.S. at 699 (emphasis in original); accord Lyng, 485 U.S. at 449-50.
In Goldman, the Court emphasized the tradition of judicial deference to military regulations. See Goldman, 475 U.S. at 507 (stating that "[o]ur review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society").
199. See Petition for Writ of Certiorari, Employment Division v. Smith, 494 U.S.
872 (1990) (No. 88-1213).
200. See Smith, 494 U.S. at 874 (describing procedural history). The Supreme Court's previous decision in Smith is reported at 485 U.S. 660 (1988).
RELIGION AND POLITICSthat the State is free to regulate," '' notwithstanding the Free Exercise Clause.20 2 Justice Scalia's majority opinion in Smith candidly acknowledges that its reasoning would eliminate the Free Exercise Clause's role as the guarantor of religious liberty for adherents of minority religions, relegating their freedom to the good will of legislative majorities.2 °3 Moreover, Justice Scalia acknowledges that legislative majorities may well be unsympathetic to the religious liberty concerns of members of minority religions. As he said, "leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in.' ' 2 04 That this observation is an understatement is indicated by the fact that Smith itself, as well as two other recent cases in which the Court has rejected Free Exercise Clause claims-Bowen v.
Roy 20 5 and Lyng v. Northwest Indian Cemetery ProtectiveAssociation2 06-all involved formally neutral government measures that severely undermined the free exercise rights of Native Americans.
Justice Scalia's conclusory response was that discriminatory truncation of the constitutional rights of minority groups is the "unavoidSmith, 494 U.S. at 878-79; see Boerne, 117 S. Ct., at 2186 (Souter, J., dissenting) (noting that the Court had never had "briefing and argument on the merits of [the Smith] rule... in any case, including Smith itself").
202. The Court's sweeping revision of Free Exercise Clause jurisprudence was the
basis for a petition for rehearing that was jointly filed by a broad array of constitutional scholars, religious organizations, and other individuals and groups. That petition, which the Court denied, read in part as follows:
Because the Court's far-reaching holding resolved an issue not briefed by the parties, because recent research on the history of the Free Exercise Clause demonstrates that the broader reading of the Clause rejected by the Court... was contemplated by the Framers of the First Amendment, and because assertions that the Court has "never held" that the Free Exercise Clause requires government to justify unintended burdens on free exercise must come as a surprise to the federal and state courts, state attorneys general, and treatise writers who have uniformly read this Court's Free Exercise decisions from as far back as at least Sherbert v. Verner, as holding precisely that, a rehearing is appropriate.
Petition for Rehearing, Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872 (1990), reh'g denied, 496 U.S. 913 (June 4, 1990).
203. See Smith, 494 U.S. at 890.
205. 476 U.S. 693 (1986) (rejecting free exercise challenge to federal benefits statute requiring benefit applicants and recipients to supply their Social Security numbers, despite claim by Native American parents that it would violate their religious beliefs to obtain and provide a Social Security number for their daughter).
206. 485 U.S. 439, 450-51 (1988) (Douglas J., concurring) (rejecting free exercise challenge to federal government's logging and road construction activities on lands sacred to several Native American tribes, even though it was undisputed that these activities "could have devastating effects on traditional Indian, religious practices").